Posted Jun 26, 2008 02:15 pm CDT
Updated: The U.S. Supreme Court has ruled 5-4 that the Second Amendment protects an individual right to own a gun, apart from service in a militia, SCOTUSblog reports.
As predicted, Justice Antonin Scalia wrote the majority opinion in the case, District of Columbia v. Heller.
Scalia writes in the decision (PDF posted by SCOTUSblog) that the Second Amendment protects the right to keep handguns for protection within the home, a traditional lawful purpose.
While the decision strikes down a District of Columbia handgun ban, it emphasizes that many gun regulations are valid. “Like most rights, the right secured by the Second Amendment is not unlimited,” Scalia writes.
“Nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Scalia notes that the D.C. gun regulation bans handgun possession at home and requires any lawful firearm kept at home to be outfitted with a trigger lock or rendered inoperable. He says the need for self-defense is most acute at home, and the restrictions are unconstitutional.
“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security, and where gun violence is a serious problem,” Scalia wrote. “That is perhaps debatable, but what is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct.”
Scalia looks to history as he parses the words of the Second Amendment, which reads: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” At issue is whether the amendment protects firearm ownership only for militia members, or whether the right extends to individuals.
“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms,” Scalia wrote in the majority opinion.
Scalia says the amendment could be rephrased this way: “Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
He concludes that a review of history shows the introductory phrase was not intended to limit gun ownership to militia members only. Instead it announced why the right was being established—as a reaction to fears the federal government would disarm the people. “History showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents,” he said.
Scalia dismisses arguments that the Supreme Court’s 1939 ruling in United States v. Miller holds that the Second Amendment does not protect an individual right to bear arms. “We … read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns,” he says.
The court applied the Second Amendment to the District of Columbia, but did not address whether it also applies to state gun regulations, according to SCOTUSblog. Scalia said the incorporation issue was not before the court.
Dissenting from the decision were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
Chicago Mayor Richard Daley reacted angrily to the opinion, calling it “a very frightening decision,” the Chicago Tribune reports. He said he was sure mayors nationwide would be outraged.
ABA President William H. Neukom issued a statement saying the ABA “is gratified” that the opinion recognizes the public safety interest in regulating firearm ownership and use. “This is not a signal to rescind regulation or ignore legitimate restrictions on gun ownership and use that are grounded in reason and practicality,” he says.
Updated throughout the morning to add detail and at 1:27 p.m. to add statement from William H. Neukom.